60 Miss. 400 | Miss. | 1882
delivered the opinion of the court.
The appellant was not barred from his appeal by his acceptance of the sum decreed to be paid him. The suit was by the appellee to compel the appellant to accept in satisfaction of his demand a less sum than he claimed to be due, and after ob taining the decree, the appellee paid the sum decreed, which was received and receipted for by the appellant, whose acceptance of it is now pleaded as a bar to his appeal. In this case we adopt the view of the Supreme Court of the United States in a similar case. Erwin v. Lowry, 7 How. 172.
We decline to lay down a rule for any other state of case than that here presented. The members of the court are not agreed on the general question, whether acceptance of what is adjudged precludes an appeal from the judgment or decree. We have examined all the cases on the subject and fully considered it and have failed to harmonize our views. Oue member of the court holds the opinion that coercion of satisfaction will bar an appeal, while mere acceptance of performance will not. Another entertains the view that acceptance of payment will bar an appeal, and the third contends that the right to enforce a judgment or decree and to appeal from it are co-existent rights conferred by statute, and that the right to appeal is not impaired by the exercise of the legal right to have execution. All of us agree that the right to appeal was not lost by the acceptance of the money by the appellant, and this result would follow the application of the views of a majority of the court as given above.
The following cases have been examined by us, and bear upon this question: Clowes v. Dickerson, 8 Cow. 328; Tarleton v. Goldthwaite’s Heirs, 23 Ala. 346; Shingler v. Martin, 54 Ala. 354; Benkard v. Babcock, 2 Robt. 175; Thomas v. Negus, 2 Gilm. 700; Morgan v. Ladd, 2 Gilm. 414; Holt v. Rees, 46 Ill. 181; Kasting v. Kasting, 47 Ill. 438 ; The Ind. Dist. v. The Dist. Delaware, 44 Iowa, 201 ; Borgatthaus v. The Farmers, 36 Iowa, 250 ; Moore v. Floyd,
In Gattman v. Weiler et al., M.S. opinion, book “I,” 557, ■ we held that the specified rate of interest continued as long as ..the debt was unpaid; but urged' by counsel, and in view of the conflict of opinion and decision on this question, we have examined it anew, and are strengthened in our former view. We are satisfied that to hold that the stipulated rate of interest shall not govern after the maturity of the contract would be to disregard the plain intent and common understanding of men in their contracts, to pervert the unmistakable meaning of their language and unjustly to pay defaulting debtors a premium not contemplated by them for their default. It is probable that no man ever promised a stipulated rate of interest who did not well understand that it was to be borne as long as the debt was unpaid. When the contracting parties stipulate for a rate of interest different from that prescribed by law, their agreement, if not prohibited by the statute, fixes •the incident of the debt which attends it as long as it exists, and to say the rate fixed by statute to govern in the absence of a conventional rate shall at any time supersede the rate agreed on, is to do violence to the right of parties to make their agreement a substitute for the statutory rate. We are aware that some courts hold a-different doctrine, and we think it quite evident that hard cases have made bad precedents; but it is true, as declared by the Supreme Court of the United States in Cromwell v. County of Sac, 96 U. S. 51, that
It seems to us that under our statute declaring that, “ all judgments and decrees founded on any contract, shall'bear interest after the rate of the debt on which such judgment or decree was rendered,” there is no plausible ground for the assertion that the stipulated rate of interest ceases at maturity of the debt. It would be a singular result of the contract that it should bear the specified rate of interest until maturity, and then the statutory rate until judgment or decree,1 and then, by force of the statute just quoted, the rate of the debt. Surely, no such thing was ever contemplated by the lawmakers or contracting parties. ' The unmistakable meaning of our statutes is that the rate of interest prescribed by them shall govern in the absence of contracts in writing as authorized for a different rate, and that such contract shall govern instead of the statutory rate, and that judgment and decrees shall bear interest after the rate of the contract on which-they are founded. It is manifest from the reasoning of the judges in cases holding a different doctrine from ours that under statutes such as ours there would be no dissent from our view. It is not admissible under our statutes to vary the rate after judgment, for the statute declares that judgments and decrees shall bear the same rate of interest as the debt or contract on which they are rendered. We refer to the following cases as supporting our view: Overton v. Bolton, 9 Heisk. 762; Etnyre v. McDaniel, 28 Ill. 201; Hubbard v. Callahan, 42 Conn. 524.
Decree reversed and cause remanded for further proceedings' in accordance with this opinion.
